For most people charged with a criminal offense in Georgia, the first consideration that must be is: how can I obtain a bond so that I can get out of jail? In Georgia, the setting of bond in criminal cases can vary widely from one county to the next. What is a reasonable bond in one county may be one-half of the cost in an adjacent county. Further, there are some jurisdictions that make getting a bond very difficult. Experienced criminal defense attorneys understand the nuances relating to the jurisdiction in which your case is pending SETTING OF BOND: WHICH COURT WILL SET BOND IN YOUR GEORGIA CRIMINAL CASE?
In determining how to obtain a bond, your lawyer must first know which court or judge to approach for the setting of bond. There is no much embarrassing event than approaching a magistrate for a bond and finding out that the magistrate does not have jurisdiction to set the bond amount.
(a) The following offenses are bailable only before a judge of the superior court:
(4) Aggravated sodomy;
(5) Armed robbery;
(5.1) Home invasion in the first degree;
(6) Aircraft hijacking and hijacking a motor vehicle;
(7) Aggravated child molestation;
(8) Aggravated sexual battery;
(9) Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule I or under Code Section 16-13-26 as Schedule II;
(10) Violating Code Section 16-13-31 or Code Section 16-13-31.1 (sale of some drugs);
(11) Kidnapping, arson, aggravated assault, or burglary in any degree if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary in any degree, had previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary in any degree, or one or more of the offenses listed in paragraphs (1) through (10) of this subsection;
(12) Aggravated stalking; and
(13) Violations of Chapter 15 of Title 16 (this chapter addresses gang activity).
BOND IN MISDEMEANOR CASES IN GEORGIA
(b)(1) All offenses not included in subsection (a) of this Code section are bailable by a court of inquiry. Except as provided in subsection (g) of this Code section, at no time, either before a court of inquiry, when indicted or accused, after a motion for new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail.
OCGA § 17-6-1. Subsection (g) of OCGA 17-6-1 addresses the availability of appeal (supersedeas) bonds:
The granting of an appeal bond to a person who has been convicted of any other felony offense or of any misdemeanor offense involving an act of family violence as defined in Code Section 19-13-1, or of any offense delineated as a high and aggravated misdemeanor or of any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court.
HOW IS THE BOND AMOUNT SET IN GEORGIA CRIMINAL CASES
Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993), is the most important Georgia case addressing the factors that must be addressing in setting pre-trial bond in a criminal case:
A person charged with the offense of murder may obtain bail only before a superior court judge. OCGA § 17-6-1(a)(2). The purpose of a pretrial bond is to prevent punishment before a conviction and to secure the appearance of the person in court for trial. Roberts v. State, 32 Ga.App. 339, 340-41, 123 S.E. 151 (1924). The standards for determining whether to grant release prior to trial are based on the 1968 American Bar Association pretrial release standards. Lane v. State, 247 Ga. 387, 388, n. 2, 276 S.E.2d 644 (1981). The trial court may release a person on bail if the court finds the person:
(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;
(3) Poses no significant risk of committing any felony pending trial; and
(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
OCGA § 17-6-1(e). The trial court must explain its reasons for denying bond to assist appellate review. Lane, 247 Ga. at 389, 276 S.E.2d 644. The granting or denial of bail will not be set aside unless there is a manifest and flagrant abuse of discretion. Jernagin v. State, 118 Ga. 307, 308, 45 S.E. 411 (1903).
This court has not addressed whether the state or the defendant has the burden of proof in pretrial bond hearings before a superior court. Neither the Lane opinion nor the law codifying the ABA standards specifies which party has the burden of proof or the evidentiary standard to be applied. See 1982 Ga.Laws 910, § 1.
Because of the phrasing of the statutory language, we conclude that the defendant has the burden of coming forward initially with evidence to show that he or she poses no significant risk of fleeing, threatening the community, committing another crime, or intimidating a witness. This burden of production means that a person charged with murder must present evidence at the bond hearing on factors that indicate roots in the community.2 These factors include the defendant's length and character of residence in the community, employment status and history, past history of responding to legal process, and prior criminal record. See Lane, 247 Ga. at 388, n. 2, 276 S.E.2d 644. Once the defendant meets the burden of production, the state may present *706 evidence to rebut it. Placing the burden of production on the defendant is fair because the accused is the best source of information on his or her community ties.
Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993).
If you are seeking a Georgia criminal defense lawyer that can assist you in obtaining a bond for someone you care about, contact The Sessions Law Firm.
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The Sessions Law Firm, LLC
1447 Peachtree Street NE, Suite 530
Atlanta, Georgia 30309
Phone: (470) 225-7710